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Commonwealth v. Shabezz

Supreme Court of Pennsylvania

July 19, 2017


          ARGUED: March 8, 2017

         Appeal from the Judgment of Superior Court entered on 12/21/2015 at No. 1702 EDA 2014 (reargument denied 02/11/2016) affirming the Order entered on 04/02/2014 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0015450-2013.

         Appeal from the Judgment of Superior Court entered on 12/21/2015 at No. 1639 EDA 2014 (reargument denied 02/11/2016) affirming the Order entered on 05/15/2014 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0012538-2013



          WECHT, JUSTICE

         On June 1, 2013, Saleem Shabezz was a passenger in a vehicle that was seized unconstitutionally by police officers. Following the stop, the officers searched the vehicle, finding drugs and weapons in various locations and compartments, as well as on Shabezz' person. The question that we confront today is whether an illegal seizure entitles a passenger to suppression only if he can establish a reasonable expectation of privacy in the areas of the car where the evidence was found, or whether that evidence instead is barred outright as fruit of the poisonous tree. We hold that the contested evidence, tainted by the initial illegality, must be suppressed, even absent a demonstrable expectation of privacy in the locations where the evidence was found. Accordingly, we affirm the Superior Court's order, and we remand this case to the trial court for further proceedings.


         As a result of the evidence obtained by the police, Shabezz was charged with possession of a controlled substance with intent to deliver, conspiracy, persons not to possess a firearm, carrying a concealed weapon without a license, possession of a small amount of marijuana, and possession of an instrument of crime. Additionally, because the weapon found in the car was stolen and was linked to another crime, Shabezz also was charged in a separate case with robbery and related firearms offenses. During the pendency of the cases, the driver of the vehicle, Sean McCorty, filed a suppression motion, which Shabezz joined. The following is a summary of the testimony presented at a subsequent hearing on the motion.

         In June 2013, Sergeant Michael Cerruti was commanding a narcotics enforcement team in a Philadelphia neighborhood. The team was comprised of Sgt. Cerruti and four other police officers. Certain areas were designated as "hot areas" based upon information developed through the team's own investigations and from Philadelphia's narcotics tip hotline. Notes of Testimony ("N.T."), 4/2/2014, at 8. One such "hot area" was the parking lot of a McDonald's restaurant located at the intersection of Cottman Avenue and Roosevelt Boulevard. According to Sgt. Cerruti, the lot was a popular place for drug trafficking due to its convenient location and the ease with which the buyer and seller could enter, conduct the transaction, and exit. As a result, Sgt. Cerruti had arrested "hundreds" of individuals for drug-related offenses in that parking lot. Id. at 9.

         At times, due to various factors such as increased police presence or civilian traffic, the drug transactions would commence in one place, but conclude at another location. The buyer and seller initially would meet at the McDonald's and, if the deal could not be completed there, would then proceed to a nearby 7-11 convenience store that was located two blocks from the McDonald's at the intersection of Cottman Avenue and Brous Avenue. The parties then would complete the transaction at the 7-11.

         At approximately 7:30 p.m. on June 1, 2013, Sgt. Cerruti and his team set up surveillance of the McDonald's and the 7-11. One team member, Officer Steven Burgoon, received a report from another surveilling officer, Officer Apostalu, [1] that individuals believed to be engaged in a drug transaction were exiting the parking lot of the McDonald's in a tan Nissan. Officer Burgoon and his partner, Officer James Wade, located the tan Nissan and followed it to the 7-11. The driver of the Nissan parked at the 7-11, and remained in the car. A short time later, a person later identified as McCorty drove a red Acura into the lot and parked a few spots away from the Nissan. At that point, a person later identified as Shabezz exited the passenger side of the Acura and approached the Nissan.

         As Shabezz approached the Nissan, Officer Burgoon positioned his unmarked police vehicle approximately forty-five feet away. At the suppression hearing, Officer Burgoon testified that he observed Shabezz open the passenger-side door of the Nissan, reach in, and conduct a hand-to-hand transaction with the driver. Officer Burgoon explained that, even without the assistance of binoculars, he saw Shabezz use a cupping and dropping motion to transfer small objects into the driver's hand. Almost simultaneously, Officer Burgoon watched Shabezz take something, presumably money, from the driver's hand in a similar cupping motion. Despite the detail with which Officer Burgoon explained this transaction while testifying at the suppression hearing, none of these particulars appeared in the incident reports that were prepared within hours of Shabezz' arrest. Those reports indicated only that Shabezz opened the passenger door, leaned inside, and conducted a brief conversation with the driver.

         Officer Burgoon informed Sgt. Cerruti that he had seen suspicious behavior that he believed resembled a drug transaction similar to those that had occurred previously in the lot. At that time, Officer Burgoon did not tell Sgt. Cerruti that he had seen Shabezz use the cupping and dropping motion, or that he had seen the exchange of small objects. (Officer Burgoon would later assert this at the suppression hearing). Sgt. Cerruti immediately ordered the surveillance team to seize the vehicles.

         As this was happening, Shabezz returned to the red Acura, which then attempted to exit the lot. Officer Burgoon drove toward the Acura and positioned the nose of his vehicle against the nose of the Acura, preventing the Acura from leaving the scene. At the same time, Sgt. Cerruti stopped the tan Nissan, and positioned his vehicle in such a way that the Acura could not back up. The Acura could not move forward or backward without striking a police vehicle.

         Shabezz exited the Acura and fled on foot. Officer Burgoon and Officer Apostolu gave chase, apprehending Shabezz a few blocks away on Cottman Avenue. Officer Apostolu searched Shabezz and found a bag containing marijuana and $1, 800 in cash. Officer Burgoon then returned to the 7-11 lot. By the time he arrived, other police officers had arrested McCorty and one Carl Halen, who had been sitting in the rear of the Acura. Sgt. Cerutti also arrested one Callahan, [2] the driver of the Nissan. The sergeant found a baggie containing marijuana in the center console of the Nissan.

         After all four individuals were arrested, Officer Wade searched the Acura. He located a black and gray bag on the floor of the front passenger seat area. Inside the bag, Officer Wade found seven heat-sealed bags of marijuana, one Ziploc baggie containing marijuana, two scales, a box of unused Ziploc baggies, and one clear knotted baggie that held more empty Ziploc baggies. In the rear passenger area, Officer Wade found another bag, which held additional bags of marijuana and a jar containing two pills. Officer Wade also recovered a bag of marijuana that he maintained had been sitting atop the center armrest between the front seat and the driver's seat. Officer Apostolu found a nine millimeter handgun in the glove compartment.

         At the conclusion of the hearing, the trial court granted the suppression motion as to all of the physical evidence, including the marijuana and money found on Shabezz' person. The court based its decision initially upon two grounds. First, the court determined that nothing prevented the police officers from obtaining a search warrant before searching the vehicles. The court found that, if the testimony was credible that drugs were in plain view on top of the center console, the officers would have had unassailable probable cause and could have secured a search warrant. Second, the court found certain testimony from the officers to be untruthful. Specifically, the court did not believe Officer Burgoon's testimony that he could see the purported drug transaction from forty-five feet away. In light of the trial court's ruling, all of the evidence was suppressed for purposes of Shabezz' robbery case as well.[3]

          The Commonwealth filed an unsuccessful motion for reconsideration of the suppression ruling, and then appealed to the Superior Court. In its Pa.R.A.P. 1925(b) statement, the Commonwealth argued, inter alia, that Shabezz, as a passenger, was not entitled to suppression of the evidence because he had failed to demonstrate a reasonable expectation of privacy in the areas and compartments of the Acura that were searched.

         In its Pa.R.A.P. 1925(a) opinion, the trial court first detailed its findings of fact and its credibility determinations, including its conclusion that the police officers could not, and, therefore did not, see a drug transaction that would have established probable cause or reasonable suspicion to justify the seizure of the Acura. See Trial Court Opinion ("T.C.O."), 8/13/2014, at 4 (explaining that the court did not believe that Officer Burgoon actually saw a hand-to-hand transaction); 5 (determining that Officer Burgoon could not see what he testified to from forty-five to fifty feet away "in the dark of night"); 7 (holding that the true facts were those contained in the officers' incident reports, which stated only that Shabezz leaned into the Nissan and had a brief conversation); 8 (disbelieving Officer Wade's testimony that drugs were located on top of the center console, and instead believing the incident reports that indicated that the drugs were found inside the console and out of plain view); and 9 (explaining that "[n]o crimes were ever actually observed. No criminal activity was ever observed, " and that, based upon the credibility findings, "these officers merely observed a group of men speaking with one another near or inside their vehicles in a parking lot;" the court also noted that any testimony to the opposite "plainly was not credited").

          Based upon its credibility findings, the court explained that the police lacked any constitutionally justifiable basis to stop the vehicles. The court also held that, because there was no basis to stop the cars, the police also were not in a lawful vantage point for plain view purposes when Officer Wade allegedly observed contraband in the car, an observation which the court did not believe regardless. The court did not discuss the Commonwealth's claim that Shabezz was not entitled to suppression because he could not demonstrate an expectation of privacy in any of the searched areas of the Acura.

         In a published opinion authored by the Honorable Victor Stabile, the Superior Court affirmed the suppression order. See Commonwealth v. Shabezz, 129 A.3d 529 (Pa. Super. 2015). Before that court, the Commonwealth advanced two distinct arguments. First, the Commonwealth argued that Shabezz did not have an expectation of privacy in the areas of the Acura that were searched and, thus, was not entitled to suppression. Second, the Commonwealth maintained that the record did not support the trial court's findings of fact, including the trial court's ultimate determination that Officer Burgoon did not, in fact, observe a drug transaction. The Superior Court began with the Commonwealth's second argument.

         Regarding the trial court's factual findings, the Superior Court held that the record supported the trial court's decision to disbelieve Officer Burgoon's testimony and to credit the facts set forth in the incident reports instead. The court concluded that "the record contains evidence supporting the trial court's finding that [Shabezz] and the Nissan driver engaged only in conversation, " id. at 533, and that the court was bound by that conclusion. Id. at 534. In light of the facts as found by the trial court, the Superior Court held that the seizure of ...

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